Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (NY VTL § 511.2(a)(ii)), Circumventing an Interlock Device (NY VTL § 1198.9(d)), Unlicensed Operator (NY VTL § 509.1) and Backing Unsafely (NY VTL § 1211(a)). The charges stem from an alleged incident that took place in the City of Beacon on August 18, 2021. By Notice of Motion and attorney affirmation, defendant seeks dismissal of the charges alleging that his constitutional and statutory rights to a speedy trial have been violated. Defendant moves for dismissal of the charges based on the People's alleged failure to announce their readiness for trial within the applicable statutory period. The People of the State of New York, represented by Lily Gebru, Esq., have filed an Affirmation in Response opposing defendant's motion.

The court has reviewed the defendant's moving papers and accompanying affidavit, the Affirmation in Response filed by the People, and the relevant statutes and case law and denies the defendant's motion for the reasons stated below.

A motion to dismiss on speedy trial grounds must be granted when the People are not [*2]ready for trial within ninety days from the commencement of a criminal action wherein the defendant is accused of one or more offenses at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony (CPL § 30.30[1][b]). A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed (CPL § 1.20[17]). The day on which an action was commenced is excluded from the computation of speedy trial time (People v. Stiles, 70 NY2d 765 [1987]). The speedy trial time ceases to run on the date the People announce their readiness for trial (People v. Kendiza, 64 NY2d 331 [1985]). A statement of readiness must be accompanied by a certificate of compliance, affirming that discovery obligations have been fulfilled (CPL § 245.50[3]). The determination as to whether the People have satisfied their obligation under CPL 30.30 is done by computing the time between the filing of the accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under CPL § 30.30(4) and then adding any post-readiness periods of delay that are actually attributable to the People for which no statutory exclusions apply (People v. Headley, 100 AD3d 775 [2012]). The defendant bears the initial burden of demonstrating that the People were not ready for trial within the statutory time period. If that initial showing is made, the burden then shifts to the People to establish whether there are any periods of excludable delay (People v. Santos, 68 NY2d 859 [1986]).

In the instant matter, the People were required to make an effective statement of readiness within ninety (90) days of the commencement of the criminal action as the defendant stands charged with a misdemeanor punishable by a sentence of imprisonment of more than three (3) months (CPL 30.30[1][b]. The action was commenced when the accusatory instruments were filed with the court on September 2, 2021. The defendant was arraigned on September 15, 2021. On September 28, 2021, the People filed an off-calendar certificate of compliance and statement of readiness with the court, a copy of which was sent to the defendant's counsel. On February 14, 2022, the People filed a superseding information on the count charging the defendant with aggravated unlicensed operation in the 2nd degree under a different subsection than the original charge. The defendant was arraigned on that charge on March 2, 2022. Following motion practice, the matter was scheduled for trial on May 26, 2022. At the time of trial, the People indicated they were not ready to proceed as their witness from the Department of Motor Vehicles (DMV) was not available. The trial was re-scheduled for June 24, 2022, over the defendant's objection.

The defendant now alleges that the People's inability to proceed with the trial on May 26, 2022, due to witness unavailability renders their September 28, 2021, statement of readiness illusory and invalid as they failed to articulate where their witness was or why they were not present on the trial date. The defendant asserts that the record is also devoid of information indicating the People had any contact with their witness at all during the pendency of this matter. It is the Defendant's position that the entire time period between the commencement of the action on September 2, 2021, and the May 26, 2022, trial date is chargeable to the People. As such, the defendant contends that the accusatory instruments should be dismissed as the statutory ninety-day speedy trial time period has elapsed. The People dispute that their statement of readiness was illusory and argue that it was in fact made in good faith. The People state that they were in contact with the representative from the DMV during the pendency of this case, and the DMV generally makes testimony available on forty-eight (48) hours' notice. The People, [*3]therefore, argue that their statement of readiness was made in good faith, and they should only be charged with only twenty-seven days delay, as any other periods of delay are excluded pursuant to the relevant provisions of CPL § 30.30.

This court is called upon to decide is whether the failure of the People's DMV witness to appear for trial rendered their initial statement of readiness illusory. However, a review of the record concerning the procedural history of this case indicates that this issue is not dispositive, as regardless of whether the case was in a state of pre-readiness or post-readiness, the time chargeable to them is less than ninety (90) days. To reiterate, the action was commenced when the charges were filed with this court on September 2, 2021. On September 28, 2021, the People filed an off-calendar certificate of compliance and statement of readiness. As mentioned above, the defendant argues that this SOR was illusory. The court will now turn to a review of the procedural history of this case and determine the periods of delay chargeable to the People.

September 2, 2021, to September 15, 2021: Filing of the accusatory instruments with the court to defendant's arraignment. Excludable time pursuant to 30.30(7)(b) as the defendant was issued an appearance ticket.

September 15, 2021, to September 22, 2021: The defendant appeared for arraignment on September 15, 2021. The court's file contains a letter from the Public Defender's Office, dated September 15, 2021, indicating that their office was representing the defendant. Eight (8) days are chargeable to the People.

September 22, 2021, to September 29, 2021: Adjournment for discovery. Seven (7) days are chargeable to the People (the 22nd is not included in this calculation as it was counted as chargeable to the People for the proceeding time period).

September 29, 2021, to October 13, 2021: Appearance and adjournment for possible disposition. Excludable time pursuant to 30.30(4)(b).

October 13, 2021, to December 8, 2021: Appearance at which time defendant requested an adjournment for motions. Excludable pursuant to 30.30(4)(a).

December 8, 2021, to January 19, 2022: Appearance and adjournment for the scheduling of pretrial hearings. The filing of motions, even in a period of pre-readiness, stops the clock regardless of the status or existence of a SOR. The time period between decision and the scheduling of hearings relevant to defendant's motion in this matter is excludable time pursuant to CPL 30.30(4)(a) as defendant requested Sandoval/Molineux hearings, which were granted by the court. See People v Green, 90 AD2d 705 [1st Dept 1982].

January 19, 2022, to February 2, 2022: Appearance and adjournment for possible disposition. Excludable time pursuant to 30.30(4)(b).

February 2, 2022, to February 14, 2022: Appearance at which time defendant filed a motion to dismiss the superseding AUO2nd charge, adjourned for decision and appearances to March 2, 2022. Excludable pursuant to 30.30(4)(a).

February 14, 2022, to March 2, 2022: People filed a superseding information on AUO2nd charge, which was subject matter of defendant's motion. As original charge was superseded, and dismissed by operation of law, no decision was necessary. Seventeen (17) days are chargeable to the People for arraignment on superseding information.

March 2, 2022, to April 6, 2022: Appearance and arraignment on superseding information and setting of motion schedule at defendant's request. Excludable pursuant to 30.30(4)(a).

April 6, 2022, to May 9, 2022: The court issued an oral decision on defendant's motion, and hearings were scheduled for May 9, 2022. On April 28, 2022, defendant filed a motion to reargue, and parties were notified via email that relief requested was denied. Excludable pursuant to 30.30(4)(a).

May 9, 2022, to May 11, 2022: Adjournment for conference in lieu of hearings, at defendant's request. Excludable pursuant to 30.30(4)(b).

May 11, 2022, to May 26, 2022: Appearance at which time trial was scheduled for May 26, 2022. Excludable pursuant to 30.30(4)(a). See People v Green, 90 AD2d 705 [1st Dept 1982].

May 26, 2022, to June 17, 2022: People were not ready for trial on May 26, 2022, and trial was re-scheduled for June 24, 2022. However, on June 17, 2022, the defendant filed the instant motion stopping the speedy trial lock. Twenty-two (22) days chargeable to the People.

Based on the foregoing, the court determines that a total of fifty-four (54) days are chargeable to the People. In view of the foregoing, the motion to dismiss the accusatory instruments on speedy trial grounds is denied.

The foregoing shall constitute the Decision and Order of this court.